Us, Now

Common sense is with the copyright warriors because the debate so far has been
framed at the extremes—as a grand either/or: either property or anarchy, either
total control or artists won’t be paid. If that really is the choice, then the
warriors should win.

The mistake here is the error of the excluded middle. There are extremes in this
debate, but the extremes are not all that there is. There are those who believe
in maximal copyright—“All Rights Reserved”—and those who reject copyright—“No
Rights Reserved.” The “All Rights Reserved” sorts believe that you should ask
permission before you “use” a copyrighted work in any way. The “No Rights
Reserved” sorts believe you should be able to do with content as you wish,
regardless of whether you have permission or not.

When the Internet was first born, its initial architecture effectively tilted in
the “no rights reserved” direction. Content could be copied perfectly and
cheaply; rights could not easily be controlled. Thus, regardless of anyone’s
desire, the effective regime of copyright under the original design of the
Internet was “no rights reserved.” Content was “taken” regardless of the rights.
Any rights were effectively unprotected.

This initial character produced a reaction (opposite, but not quite equal) by
copyright owners. That reaction has been the topic of this book. Through
legislation, litigation, and changes to the network’s design, copyright holders
have been able to change the essential character of the environment of the
original Internet. If the original architecture made the effective default “no
rights reserved,” the future architecture will make the effective default “all
rights reserved.” The architecture and law that surround the Internet’s design
will increasingly produce an environment where all use of content requires
permission. The “cut and paste” world that defines the Internet today will
become a “get permission to cut and paste” world that is a creator’s nightmare.

What’s needed is a way to say something in the middle—neither “all rights
reserved” nor “no rights reserved” but “some rights reserved”—and thus a way to
respect copyrights but enable creators to free content as they see fit. In other
words, we need a way to restore a set of freedoms that we could just take for
granted before.

Rebuilding Freedoms Previously Presumed: Examples

If you step back from the battle I’ve been describing here, you will recognize
this problem from other contexts. Think about privacy. Before the Internet, most
of us didn’t have to worry much about data about our lives that we broadcast to
the world. If you walked into a bookstore and browsed through some of the works
of Karl Marx, you didn’t need to worry about explaining your browsing habits to
your neighbors or boss. The “privacy” of your browsing habits was assured.

What made it assured?

Well, if we think in terms of the modalities I described in chapter 10, your
privacy was assured because of an inefficient architecture for gathering data
and hence a market constraint (cost) on anyone who wanted to gather that data.
If you were a suspected spy for North Korea, working for the CIA, no doubt your
privacy would not be assured. But that’s because the CIA would (we hope) find it
valuable enough to spend the thousands required to track you. But for most of us
(again, we can hope), spying doesn’t pay. The highly inefficient architecture of
real space means we all enjoy a fairly robust amount of privacy. That privacy is
guaranteed to us by friction. Not by law (there is no law protecting “privacy”
in public places), and in many places, not by norms (snooping and gossip are
just fun), but instead, by the costs that friction imposes on anyone who would
want to spy.

Enter the Internet, where the cost of tracking browsing in particular has become
quite tiny. If you’re a customer at Amazon, then as you browse the pages, Amazon
collects the data about what you’ve looked at. You know this because at the side
of the page, there’s a list of “recently viewed” pages. Now, because of the
architecture of the Net and the function of cookies on the Net, it is easier to
collect the data than not. The friction has disappeared, and hence any “privacy”
protected by the friction disappears, too.

Amazon, of course, is not the problem. But we might begin to worry about
libraries. If you’re one of those crazy lefties who thinks that people should
have the “right” to browse in a library without the government knowing which
books you look at (I’m one of those lefties, too), then this change in the
technology of monitoring might concern you. If it becomes simple to gather and
sort who does what in electronic spaces, then the friction-induced privacy of
yesterday disappears.

It is this reality that explains the push of many to define “privacy” on the
Internet. It is the recognition that technology can remove what friction before
gave us that leads many to push for laws to do what friction did. [1] And
whether you’re in favor of those laws or not, it is the pattern that is
important here. We must take affirmative steps to secure a kind of freedom that
was passively provided before. A change in technology now forces those who
believe in privacy to affirmatively act where, before, privacy was given by
default.

A similar story could be told about the birth of the free software movement.
When computers with software were first made available commercially, the
software—both the source code and the binaries—was free. You couldn’t run a
program written for a Data General machine on an IBM machine, so Data General
and IBM didn’t care much about controlling their software.

That was the world Richard Stallman was born into, and while he was a researcher
at MIT, he grew to love the community that developed when one was free to
explore and tinker with the software that ran on machines. Being a smart sort
himself, and a talented programmer, Stallman grew to depend upon the freedom to
add to or modify other people’s work.

In an academic setting, at least, that’s not a terribly radical idea. In a math
department, anyone would be free to tinker with a proof that someone offered. If
you thought you had a better way to prove a theorem, you could take what someone
else did and change it. In a classics department, if you believed a colleague’s
translation of a recently discovered text was flawed, you were free to improve
it. Thus, to Stallman, it seemed obvious that you should be free to tinker with
and improve the code that ran a machine. This, too, was knowledge. Why shouldn’t
it be open for criticism like anything else?

No one answered that question. Instead, the architecture of revenue for
computing changed. As it became possible to import programs from one system to
another, it became economically attractive (at least in the view of some) to
hide the code of your program. So, too, as companies started selling peripherals
for mainframe systems. If I could just take your printer driver and copy it,
then that would make it easier for me to sell a printer to the market than it
was for you.

Thus, the practice of proprietary code began to spread, and by the early 1980s,
Stallman found himself surrounded by proprietary code. The world of free
software had been erased by a change in the economics of computing. And as he
believed, if he did nothing about it, then the freedom to change and share
software would be fundamentally weakened.

Therefore, in 1984, Stallman began a project to build a free operating system,
so that at least a strain of free software would survive. That was the birth of
the GNU project, into which Linus Torvalds’s “Linux” kernel was added to produce
the GNU/Linux operating system.

Stallman’s technique was to use copyright law to build a world of software that
must be kept free. Software licensed under the Free Software Foundation’s GPL
cannot be modified and distributed unless the source code for that software is
made available as well. Thus, anyone building upon GPL’d software would have to
make their buildings free as well. This would assure, Stallman believed, that an
ecology of code would develop that remained free for others to build upon. His
fundamental goal was freedom; innovative creative code was a byproduct.

Stallman was thus doing for software what privacy advocates now do for privacy.
He was seeking a way to rebuild a kind of freedom that was taken for granted
before. Through the affirmative use of licenses that bind copyrighted code,
Stallman was affirmatively reclaiming a space where free software would survive.
He was actively protecting what before had been passively guaranteed.

Finally, consider a very recent example that more directly resonates with the
story of this book. This is the shift in the way academic and scientific
journals are produced.

As digital technologies develop, it is becoming obvious to many that printing
thousands of copies of journals every month and sending them to libraries is
perhaps not the most efficient way to distribute knowledge. Instead, journals
are increasingly becoming electronic, and libraries and their users are given
access to these electronic journals through password-protected sites. Something
similar to this has been happening in law for almost thirty years: Lexis and
Westlaw have had electronic versions of case reports available to subscribers to
their service. Although a Supreme Court opinion is not copyrighted, and anyone
is free to go to a library and read it, Lexis and Westlaw are also free to
charge users for the privilege of gaining access to that Supreme Court opinion
through their respective services.

There’s nothing wrong in general with this, and indeed, the ability to charge
for access to even public domain materials is a good incentive for people to
develop new and innovative ways to spread knowledge. The law has agreed, which
is why Lexis and Westlaw have been allowed to flourish. And if there’s nothing
wrong with selling the public domain, then there could be nothing wrong, in
principle, with selling access to material that is not in the public domain.

But what if the only way to get access to social and scientific data was through
proprietary services? What if no one had the ability to browse this data except
by paying for a subscription?

As many are beginning to notice, this is increasingly the reality with
scientific journals. When these journals were distributed in paper form,
libraries could make the journals available to anyone who had access to the
library. Thus, patients with cancer could become cancer experts because the
library gave them access. Or patients trying to understand the risks of a
certain treatment could research those risks by reading all available articles
about that treatment. This freedom was therefore a function of the institution
of libraries (norms) and the technology of paper journals (architecture)—namely,
that it was very hard to control access to a paper journal.

As journals become electronic, however, the publishers are demanding that
libraries not give the general public access to the journals. This means that
the freedoms provided by print journals in public libraries begin to disappear.
Thus, as with privacy and with software, a changing technology and market shrink
a freedom taken for granted before.

This shrinking freedom has led many to take affirmative steps to restore the
freedom that has been lost. The Public Library of Science (PLoS), for example,
is a nonprofit corporation dedicated to making scientific research available to
anyone with a Web connection. Authors of scientific work submit that work to the
Public Library of Science. That work is then subject to peer review. If
accepted, the work is then deposited in a public, electronic archive and made
permanently available for free. PLoS also sells a print version of its work, but
the copyright for the print journal does not inhibit the right of anyone to
redistribute the work for free.

This is one of many such efforts to restore a freedom taken for granted before,
but now threatened by changing technology and markets. There’s no doubt that
this alternative competes with the traditional publishers and their efforts to
make money from the exclusive distribution of content. But competition in our
tradition is presumptively a good—especially when it helps spread knowledge and
science.

Rebuilding Free Culture: One Idea

The same strategy could be applied to culture, as a response to the increasing
control effected through law and technology.

Enter the Creative Commons. The Creative Commons is a nonprofit corporation
established in Massachusetts, but with its home at Stanford University. Its aim
is to build a layer of reasonable copyright on top of the extremes that now
reign. It does this by making it easy for people to build upon other people’s
work, by making it simple for creators to express the freedom for others to take
and build upon their work. Simple tags, tied to human-readable descriptions,
tied to bullet-proof licenses, make this possible.

Simple—which means without a middleman, or without a lawyer. By developing a
free set of licenses that people can attach to their content, Creative Commons
aims to mark a range of content that can easily, and reliably, be built upon.
These tags are then linked to machine-readable versions of the license that
enable computers automatically to identify content that can easily be shared.
These three expressions together—a legal license, a human-readable description,
and machine-readable tags—constitute a Creative Commons license. A Creative
Commons license constitutes a grant of freedom to anyone who accesses the
license, and more importantly, an expression of the ideal that the person
associated with the license believes in something different than the “All” or
“No” extremes. Content is marked with the CC mark, which does not mean that
copyright is waived, but that certain freedoms are given.

These freedoms are beyond the freedoms promised by fair use. Their precise
contours depend upon the choices the creator makes. The creator can choose a
license that permits any use, so long as attribution is given. She can choose a
license that permits only noncommercial use. She can choose a license that
permits any use so long as the same freedoms are given to other uses (“share and
share alike”). Or any use so long as no derivative use is made. Or any use at
all within developing nations. Or any sampling use, so long as full copies are
not made. Or lastly, any educational use.

These choices thus establish a range of freedoms beyond the default of copyright
law. They also enable freedoms that go beyond traditional fair use. And most
importantly, they express these freedoms in a way that subsequent users can use
and rely upon without the need to hire a lawyer. Creative Commons thus aims to
build a layer of content, governed by a layer of reasonable copyright law, that
others can build upon. Voluntary choice of individuals and creators will make
this content available. And that content will in turn enable us to rebuild a
public domain.

This is just one project among many within the Creative Commons. And of course,
Creative Commons is not the only organization pursuing such freedoms. But the
point that distinguishes the Creative Commons from many is that we are not
interested only in talking about a public domain or in getting legislators to
help build a public domain. Our aim is to build a movement of consumers and
producers of content (“content conducers,” as attorney Mia Garlick calls them)
who help build the public domain and, by their work, demonstrate the importance
of the public domain to other creativity.

The aim is not to fight the “All Rights Reserved” sorts. The aim is to
complement them. The problems that the law creates for us as a culture are
produced by insane and unintended consequences of laws written centuries ago,
applied to a technology that only Jefferson could have imagined. The rules may
well have made sense against a background of technologies from centuries ago,
but they do not make sense against the background of digital technologies. New
rules—with different freedoms, expressed in ways so that humans without lawyers
can use them—are needed. Creative Commons gives people a way effectively to
begin to build those rules.

Why would creators participate in giving up total control? Some participate to
better spread their content. Cory Doctorow, for example, is a science fiction
author. His first novel, Down and Out in the Magic Kingdom, was released on-
line and for free, under a Creative Commons license, on the same day that it
went on sale in bookstores.

Why would a publisher ever agree to this? I suspect his publisher reasoned like
this: There are two groups of people out there: (1) those who will buy Cory’s
book whether or not it’s on the Internet, and (2) those who may never hear of
Cory’s book, if it isn’t made available for free on the Internet. Some part of
(1) will download Cory’s book instead of buying it. Call them bad-(1)s. Some
part of (2) will download Cory’s book, like it, and then decide to buy it. Call
them (2)-goods. If there are more (2)-goods than bad-(1)s, the strategy of
releasing Cory’s book free on-line will probably increase sales of Cory’s
book.

Indeed, the experience of his publisher clearly supports that conclusion. The
book’s first printing was exhausted months before the publisher had expected.
This first novel of a science fiction author was a total success.

The idea that free content might increase the value of nonfree content was
confirmed by the experience of another author. Peter Wayner, who wrote a book
about the free software movement titled Free for All, made an electronic
version of his book free on-line under a Creative Commons license after the book
went out of print. He then monitored used book store prices for the book. As
predicted, as the number of downloads increased, the used book price for his
book increased, as well.

These are examples of using the Commons to better spread proprietary content. I
believe that is a wonderful and common use of the Commons. There are others who
use Creative Commons licenses for other reasons. Many who use the “sampling
license” do so because anything else would be hypocritical. The sampling license
says that others are free, for commercial or noncommercial purposes, to sample
content from the licensed work; they are just not free to make full copies of
the licensed work available to others. This is consistent with their own art—
they, too, sample from others. Because the legal costs of sampling are so high
(Walter Leaphart, manager of the rap group Public Enemy, which was born sampling
the music of others, has stated that he does not “allow” Public Enemy to sample
anymore, because the legal costs are so high [2]), these artists release into
the creative environment content that others can build upon, so that their form
of creativity might grow.

Finally, there are many who mark their content with a Creative Commons license
just because they want to express to others the importance of balance in this
debate. If you just go along with the system as it is, you are effectively
saying you believe in the “All Rights Reserved” model. Good for you, but many do
not. Many believe that however appropriate that rule is for Hollywood and
freaks, it is not an appropriate description of how most creators view the
rights associated with their content. The Creative Commons license expresses
this notion of “Some Rights Reserved,” and gives many the chance to say it to
others.

In the first six months of the Creative Commons experiment, over 1 million
objects were licensed with these free-culture licenses. The next step is
partnerships with middleware content providers to help them build into their
technologies simple ways for users to mark their content with Creative Commons
freedoms. Then the next step is to watch and celebrate creators who build
content based upon content set free.

These are first steps to rebuilding a public domain. They are not mere
arguments; they are action. Building a public domain is the first step to
showing people how important that domain is to creativity and innovation.
Creative Commons relies upon voluntary steps to achieve this rebuilding. They
will lead to a world in which more than voluntary steps are possible.

Creative Commons is just one example of voluntary efforts by individuals and
creators to change the mix of rights that now govern the creative field. The
project does not compete with copyright; it complements it. Its aim is not to
defeat the rights of authors, but to make it easier for authors and creators to
exercise their rights more flexibly and cheaply. That difference, we believe,
will enable creativity to spread more easily.